Thursday, 12 December 2013

Who decides who decides - Opinion of AG Wahl in Case C-470/12 Pohotovost'

What position do consumer organisations hold under EU law when it comes to assisting consumers in pursuing their claims in court? While the Court of Justice of the EU (CJEU) recently clarified the conditions under which a consumer organisation may bring an independent claim regarding unfair contract terms (ACICL v. ASE), a case that is currently pending concerns the possibilities for an organisation to join in a procedure regarding the enforcement of an arbitration award. Today, Advocate-General Wahl handed down his Opinion in this case, C-470/12 Pohotovost'.

The case concerns a Slovak credit supplier, Pohotovost', who had concluded a consumer credit contract with a certain client. Subsequently, as a result of arbitration proceedings concerning this contract, an arbitration tribunal ordered the consumer/client to pay the credit company a certain amount of money. The arbitration award became final and execution proceedings followed. At this stage, consumer organisation HOOS asked to be added to the proceedings, in particular in order to challenge the impartiality of the bailiff involved in the case, who earlier had been employed by Pohotovost'. 

Slovak procedural law prevents the consumer organisation from joining the proceedings. The referring court is in doubt as to the validity of this national rule of procedure in light of the consumer protection offered by EU Directive 93/13 jo. Articles 38 and 47 of the EU Charter of Fundamental Rights (consumer protection and the right to an effective remedy).

According to AG Wahl, EU law does not preclude a provision of national law that prevents a consumer organisation from joining in enforcement proceedings. At the same time, the relevant provisions of EU law do not stand in the way of a judge allowing a consumer organisation to join such proceedings. In other words, in the AG's opinion the question referred to the CJEU is neither directly nor indirectly governed by EU law: Directive 93/13 does not address the role of consumer organisations joining in individual proceedings, nor does it prohibit Member States from adopting a higher level of consumer protection by allowing judges to accept consumer organisations being added to such proceedings. Articles 38 and 47 of the Charter do not lead to a different conclusion, since they do not support an interpretation of the Directive in the sense that it would lay down a right for consumer organisations to join in individual enforcement proceedings.

In sum, whereas this opinion does not promote a further extension of EU legislative competences (and thus respects the procedural autonomy of the Member States), it does offer a clear illustration of the process of constitutionalisation of EU consumer law (visible in the growing number of references to the Charter in preliminary reference procedures).

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